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Is it Time to Reign in the Heavy Hand of the New Jersey Division of Child Protection and Permanency? (DCPP Formerly Known as DYFS)
Society’s interest in the protection of children is a significant and legitimate interest of the State. That interest still must be balanced with the constitutional rights of those being investigated by child welfare agencies.
The Division of Child Protection and Permanency (DCPP), formerly known as the Division of Youth and Family Services (DYFS) has been granted broad powers both from State statutes and the New Jersey Administrative Code. The question becomes whether agents of the State acting under those powers, exceed their scope, and violate the due process rights of those parents and families that they are meant to protect? The DCPP’s investigatory broad power flows from the structure of statutes and administrative code. The overzealous application of such power, even if intended in good faith, can be intrusive and damaging to the family unit the laws were intended to protect.
The Basic Processing of an Allegation of Abuse and/or Neglect:
First, DCPP is required to investigate all allegations of child abuse and neglect.
Second, anyone who reports an allegation of child abuse and neglect is protected by the cloak of confidentiality.
Third, at the conclusion of its investigation DCPP makes a determination based upon the New Jersey Administrative Code. The “Division Action” determination levels are:
1. Substantiated.
2. Established.
3. Not Established – if there is not a preponderance of the evidence that a child is an abused or neglected child, but “evidence indicates that the child was harmed or was placed at risk of harm.”
4. Unfounded.
The person identified as the “perpetrator” who is the subject of a “Notification of Finding” as to Substantiated and/or Established has the opportunity to dispute a finding of abuse or neglect by filing an appeal to the Office of Administrative Law. There is an dispositional review and/or appeal process from a determination of the first two levels, which allows for review by the agency itself and then by the Office of Administrative Law pursuant to the Administrative Procedure Act. Such a process allows for notice and the ability to challenge the determinations by the agency. Under these determinations there are provisions to provide due process in the action by the State.
When the DCPP investigation determines that the allegation is Unfounded, there is a process by which it remains in the local regional DCPP office and then is subject to “expunction” after a period of three years if no further issues are raised. Again such a process where information relating to an allegation remains at a local DCPP office for a limited period of time and then is expunged appears to be rational and reasonably related to a legitimate government interest.
Where Due Process is Denied:
In the never-never-land of “Not Established,” with insufficient evidence to support abuse or neglect by a preponderance of the evidence, DCPP may make a finding that there is “evidence that the child was harmed or was placed at risk of harm.” The allegations, the investigation information, and “findings” remain in DCPP’s local regional office files forever, without the right to know the “evidence,” to challenge the allegations, and without the right of expunction.
What can occur is an anonymous or confidential allegation of harm or risk of harm, that is “not established,” will remain in a government file for that “perpetrator,” that parent, or family, forever. When a finding of Not Established is made, the “perpetrator,” the parent, the family, has no right to know who made the allegation or of what the evidence consists. The “perpetrator” the parent, the family, has no right to review or to challenge the allegation in an administrative hearing. Review is only available in the Appellate Division of the New Jersey Superior court based upon the limited record relied upon by DCPP. The “perpetrator” has no right to have the allegation, investigation, and finding expunged from a permanent government file.
What is also striking is that the “perpetrator,” parent, or family has no right to even know what was alleged. Logic would dictate that if a governmental agency makes a finding that “evidence indicates that the child was harmed or was placed at risk of harm” but that no action is necessary, that the parent or family would at least be advised of what the evidence of harm or risk of harm so that the family could correct any such harm or risk of harm. Instead, no remedial action is taken and the finding is placed permanently in DCPP’s local regional files.
When a Determination of “Not Established” Violates Due Process:
While the need to protect children from abuse and neglect is a legitimate governmental interest, no agency should be allowed based on “confidential” information to make a finding of harm or risk of harm and maintain a permanent file without the ability of the parent or family to seek a due process review of such a determination.
Where it Gets Scary:
Based on an anonymous and/or confidential report, DCPP may arrive at a family’s home with uniformed law enforcement officers (usually two uniformed armed officers), demand entry to inspect the home, demand the parents/guardians sign releases for medical records of the children alleged to have been abused or neglected, and will proceed to interrogate the parents or guardians, sometimes in the presence of young children. When DCCP has probable cause to conduct a search there is a mechanism to obtain access to a residence and that is establishing probable cause before a court. Although DCPP has the ability to obtain a court Order for the search and arrest of individuals, it is not an unusual practice to engage in these investigatory actions without prior judicial approval.
When DCPP demands access to a home it does so under circumstances that are intimidating to any parent to any family. Under these circumstances DCPP does not comply with the protections under the Constitution of the State of New Jersey and does so in violation of the law.
DCPP/DYFS’s authority and interest in protecting children should not allow
“confidential” and faceless allegations to override the privacy rights of citizens and the rights to be free from warrantless searches under our State and Federal Constitutions
In New Jersey when law enforcement seeks to conduct a search without a warrant, as a matter of constitutional requirement, the State is required to obtain proper consent advising the parties that they have the right to refuse consent (in the absence of an independent exception to the warrant requirement that would otherwise justify a warrantless search).
When confronted by an investigator from DCPP and possibly two uniformed armed law enforcement officer, the alleged “perpetrators” are not properly notified of their constitutional right to refuse DCPP/DYFS and police entry into their home. No Consent to Search Form is offered or executed. If there is no warrant, no probable cause determination by a court, and there is no compliance and there is simply coercion through the use of uniformed, armed officers, under the not so veiled threat of removal of children, to search a residence and interrogate parents, family members, and possibly neighbors.
Where it Gets Really Scary:
The problem with the absolute confidentiality of such allegations is any person, who acts in bad faith, who makes a false allegation of child abuse or neglect against another person can trigger an investigation and cause a DCPP investigator and armed law enforcement officers to appear at a family’s home. That source is cloaked with confidentiality and can set in motion extremely intimidating law enforcement action without fear of accountability. It is not known whether DCPP ever takes action against or investigates sources that make allegations that DCPP ultimately determines to be unfounded. In another context, there is a phenomenon called “swatting.” Swatting is where anonymous bad faith callers trigger swat teams to descend on a location putting civilians and law enforcement agents at risk. Anonymous allegations of child abuse and neglect can be misused in the same way. Bad faith reports of child abuse should not be permitted without consequence.
The Goal Should be to Protect, Not Intimidate, Children and the Family Unit, What Should be Done:
Minimum due process must be provided in those cases where allegations are “Not Established,” yet a permanent record will be established that there is “evidence of harm” or “risk of harm” to children. A permanent record should not be permitted without the subject being able to know the allegations, be able to respond, and challenge a determination of “evidence of harm or risk of harm.” There is no justification to deny a fair review and due process in a situation where there will be a permanent record of evidence of harm.
A simple and proper resolution of this anomalous situation would be to amend the New Jersey Administrative Code and do away with the third level Division Action, i.e. situations where the allegation is “Not Established” but “evidence indicates that the child was harmed or was placed at risk of harm.” If that level of determination were removed, what would remain would be due process provisions for those determinations that are “Substantiated” and “Established,” and an expunction provision (after 3 years) for “Unfounded” determinations.
Another issue is whether Unfounded allegations should be reviewed to determine if the allegations were made in bad faith. The potential for “confidential” allegations of abuse is substantial. When an allegation has been made and the DCPP investigation reveals that the accusation is determined to be “Unfounded,” the DCPP should conduct some assessment to determine whether the allegation was made in good faith or driven by some bad faith intent. Unfounded accusations that trigger the intrusive and intimidating action by the DCPP are an attack on the integrity and security of the family unit. There should not be an indifference to the impact such investigations have on families that have been the subject of “not established” or “unfounded” accusations.
References:
N.J.A.C. 10:129-2.1 When an investigation is required
N.J.A.C. 10:129-2.2. Allegations of abuse or neglect
N.J.A.C. 10:129-2.4 Evidence needed to support a finding
N.J.A.C. 10:129-7.3 Investigation findings
N.J.A.C. 10:129-7.8 Other notification at conclusion of investigation
N.J.A.C. 10:129-8.1 Expunction limited to a record that consists of an unfounded report; contents of record to be expunged
N.J.A.C. 3A:10-7.3 – Investigation findings
N.J.S.A. 9:6-8.10a Records of child abuse reports; confidentiality; disclosure
N.J.A.C. 10:120A Administrative Hearings
U.S.Const., amend. IV, XIV
N.J.Const., arts. 1, 7, 10
New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c) (2004).
State v. Elders, 192 N.J. 224, 240-41 (2007)
State v. Domicz, 188 N.J. 285, 307 (2006)
State v. Johnson, 68 N.J. 349, 354 (1975)
About the author:
Eric Marcy, Esq., is Of Counsel at Lyons & Associates, P.C., with Offices in Somerville, Morristown, and Freehold. His practice areas include criminal, civil rights, professional licensing, health care, and administrative law
Inquiries may be directed to him by telephone at 908-575-9777 or by email at [email protected]
Mr. Marcy has been a member of the New Jersey Association of Criminal Defense Lawyers since 1987. He served as a Trustee of the NJ-ACDL from 2001 to 2010.
Mr. Marcy served as an instructor for the Institute of Continuing Legal Education Criminal Practice “Skills and Methods” program for newly admitted attorneys from 2000 to 2009.
Mr. Marcy has been selected for inclusion in New Jersey Super Lawyers® lists 2006-2009, 2017 to the present.
He is also an authorized attorney under the New Jersey State PBA Legal Protection Plan, representing law enforcement officers in administrative, civil and criminal matters.